Summary of the Judgment of 17 December 2002

Summaries of Judgments, AdviNot an official document of the Internationa
l Court of Justice

CASE CONCERNING SOVEREIGNTY OVER PULAU LIGITAN AND PULAU
SIPADAN (INDONESIA v. MALAYSIA) (MERITS)

Judgment of 17 December 2002

In its Judgmentin the case concerning Sovereigntyover Ligitan and Pulau Sipadan belongs to the Republic of
Pulau Ligitan and Pulau Sipadan (IndonesiaIMalaysia),the Indonesiaor to Malaysia.
Court fbund, by sixteenvotes to one, that "sovere:igntyover Each of tlie Parties duly filed a Memorial, Counter-
Pulau Ligitan and Pulau Sipadan belongs to Malaysia".
Ligitan and Sipadan are two very small islands located in Memorial and Reply within the time limits fixed by the
Court.
the Celebes Sea, off the north-east coast of the:island of Sincethe Courtincludedupon the Benchnojudge of the
Borneo. nationality of either of the Parties,each Party proceeded to
The: Court was composed as follows: President chooseajudge adhoc to sit in thecase:IndonesiachoseMr.
Guillaume; Vice-President Shi; Judges Oda, Ranjeva, Mohamed Shahabuddeen and Malaysia Mr. Christopher
Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins,
Gregory Weeramantry. After Mr. Shahabuddeen had
Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, resigned, Indonesia chose Mr. Thomas Franck to replace
Buergenthal and Elaraby; Jutlges ad hoc Weerarnantry and him.
Franck;RegistrarCouvreur. On 13March2001, the Republic ofthe Philippinesfiled
in the RegistryoftheCourt an Applicationforpermissionto
intervene in the case, invoking Article 62 of the Statute of

the Court. Bya Judgmentrendered on 23 October 2001, the
Judge Oda appended a declaration to the Judgment of Court found that the Application of the Philippines could
the Court; Judge ad hoc F'ranckappended a dissenting notbe granted.
opinionto the Judgmentof the Court. Publichearingswereheld from3 to 12June 2002.
At the oral proceedings,the following submissionswere

presentedby the Parties:
On behrrlfoj'theGoverrzttlettfIt~dotlesia,
The full text of the operativeparagraphof the:Judgment "On the basis of the facts and legal considerations
presentedin Indonesia's written pleadingsand in its oral
readsas follows:
For these reasons, presentation, the Government of the Republic of
"THE COURT, Indonesiarespectfullyrequests the Court to adjudge and
declarethat:
By sixteenvotes to one, (i) sovereigilty over Pulau Ligitan belongs to the
Finds that sovereignty over Pulau Ligitanand Pulau Republicof Indonesia;and
Sipadanbelongsto Malaysia.
IN FAVOUR: President Guillaume;Vice-president (ii) sovereignty over Pulau Sipadan belongs to the
Shi; Judges Oda, Ranjeva, Herczegh, FL:ischhauer, Republicof Indonesia."
012 beltalfoj'the Gove~-nmenotfMalaysin,
Koroma, Vereshchetin, Higgins, Parra-Aranguren, "The Govermnentof Malaysia respectfully requests the
Kooijmans, Rezek, Al-Khasawneh, Buergenthal,
Elaraby;Judgeadhoc Waeramantry; Courtto adjudgeand declarethat sovereigntyoverPulau
AGAINST:Judgead llocFranck." LigitanandPulauSipadanbelongsto Malaysia."

Geographical cotztext
(para. 14)

The Court firstdescribesthe geographical context of the
Histoty oj'theproceedings and c1airtl.sof the Parties disputeas follows:
(paras. 1-13) The islands of Ligitan and Sipadan (Pulau Ligitan and

On 2 November 1998Indonesiaand Malaysia notifiedto Pulau Sipadan)are both located in the Celebes Sea, off the
the Registrarof the Court a SpecialAgreement between the north-east coast of the island of Borneo, and lie
two States, signed at Kuala Lumpur on 31May 1997 and approximately 15.5 nautical miles apart. Ligitan is a very
having entered into force on 14 May 1998.In that Special small island lyingat the southern extremityof a large star-
Agreement they requested the Court to determine on the shaped reef extending southwards from the islands of
basis of the treaties, agreements and any other evidence Danawan and Si Amil. Its coordinates are 4'09' latitude
northand 118'53'longitudeeast.The islandis situatedsome
furnished by the Parties, whether sovereignty over Pulau
21 nautical miles from Tanjulig Tutop, 011 the SempornaPeninsula, the nearest area on Borneo. Permanently above The 1891 Cont~entionbetweeiz Great Britaiiz uild
sea level and mostly sand, Ligitan is an island with low- the Netherlands
lying vegetation and some trees. It is not permanently (paras. 34-92)
inhabited.
'The Court notes that Indonesia's main claim is that
Although bigger than Ligitan, Sipadan is also a small sovereigntyover the islands of Ligitan and Sipadanbelongs
island, having an area of approximately 0.13 sq. km. Its to it by virtue of the 189 Convention.Indonesia maintains
coordinates are 4'06' latitude north and 118O37'longitude that "[tlhe Convention, by its terms, its context, and its
east. It is situated some 15 nautical miles from Tanjung object and purpose, established the 4O10'N parallel of
Tutop, and 42 nautical miles from the east coast of the latitude as the dividing line between the Parties' respective
island of Sebatik. Sipadan is a densely wooded island of
volcanic origin and the top of a submarine mountain some possessions in the area now in question". It states in this
600 to 700 m in height, around which a coral atoll has conrlectionthat its position is not that"the 1891Convention
line was from the outset intended also to be, or in effect
formed. It was not inhabited on a permanent basis until the was!a maritime boundary ..east of Sebatikisland" but that
1980s,when it was developedinto a touristresort for scuba- "the line must be considered an allocation line: land areas,
diving. including islands located to the north of 4O10'N latitude
were ...consideredto beBritish, and those lyingto the south
Historical background wen: Dutch". Asthe disputed islands lie to the south of that

(paras. 15-31 ) parallel,"[ilt therefore follows that under the Convention
The Court then gives an overview of the complex title to those islands vested in The Netherlands, and now
historicalbackgroundof the disputebetweenthe Parties. vests inIndonesia".
Indonesia relies essentially on Article IV of the 1891
Convention in support of its claim to the islands of Ligitan
Bases of the Purties 'ckairns and Sipadan.Thatprovisionreads as follows:
(paras. 32 and 33)
"From 4'10' north latitude on the east coast the
The Court notes that Indonesia's claim to sovereignty boundary-line shall be continued eastward along that
over the islands of Ligitan and Sipadan rests primarily on parallel, across the Island of Sebittik: that portion of the
the Convention which Great Britain and the Netherlands island situated to the north of that parallel shall belong
concluded on 20 June 1891for the purpose of "defining the unreservedlyto the British North BorneoCompany, and
boundariesbetweenthe Netherlandpossessionsin the Island the portion south of that parallelto theNetherlands."
of Borneo and the States in that Island which [were] under
British protection". Indonesia also relies on a series of The Parties disagree over the interpretation to be given
to thatprovision.
efectivitks, both Dutch and Indonesian, which it claims
confirm its conventional title. At the oral proceedings Interpretation of tlte 1891 Conveiltion
Indonesia further contended, by way of alternative
argument, that if the Court were to reject its title based on (paras. 37-92)
the 1891 Convention, it could still claim sovereignty over The Court notes that Indonesia is not a party to the
the disputed islands as successorto the Sultan of Bulungan, Vienna Conventionof 23 May 1969on the Law of Treaties;
becausehe had possessedauthorityover the islands. the Court would neverthelessrecall that, in accordancewith

For its part, Malaysia contends that it acquired customary internationallaw, reflected in Articles 3 1and 32
sovereignty over the islands of Ligitan and Sipadan of that Convention:
following a series of alleged transmissions of the title "a treaty must be interpretedin good faith in accordance
originally held by the former sovereign, the Sultan of Sulu. with the ordinary meaning to be given to its terms in
Malaysia claims that the title subsequently passed, in their context and in the light of its object and purpose.
succession, to Spain, to the United States, to Great Britain Interpretation must be based above all upon the text of

on behalf of the State of North Borneo, to the United the treaty. As a supplementarymeasure recourse may be
Kingdom of Great Britain and Northern Ireland, and finally had to means of interpretation such as the preparatory
to Malaysia itself. It argues that its title. basedonis series work of the treaty and the circumstances of its
of legal instruments, is confirmed by a certain number of conclusion."
British and Malaysian eflectivitksover the islands. It argues It further recalls that, with respect to Article 31,
in the alternativethat, if the Court were to concludethat the
disputed islandshad originallybelonged to the Netherlands, paragraph 3, it has had occasion to state that this provision
also reflects customary law, stipulating that there shall be
its effecfivitkswould in any event have displaced any such taken into account,togetherwith the context,the subsequent
Netherlandstitle. conduct of the parties to the treaty, i.e., "any subsequent
agreement" (subpara. (a)) and "any subsequent practice"
(subpara. (b)) The Court observes that Indonesia does not dispute that First, the Memorandum refers to the fact that, in the
these are the applicablerules. course of the prior negotiations, the British delegation had
proposed that the boundaryline should run eastwards from
Thetext ofArticle IV the east coast of North Borneo, passing betweenthe islands
of Sebatik and East Nanukan. As regards Sebatik, the
(paras. 39-43) Memorandum explains that the island's partitionhad been
With respect to the terms of Article IV, Indonesia
mainta.insthat this Article contains nothing to suggest that agreed following a proposal by the Dutch Government and
was considered necessary inorder to provide access to the
the line stops at the east coast of Sebatik Island. According coastal regions allocated to each party. The Memorandum
to Malaysia, the plain and ordinary meaning of the words contains no reference to the disposition of other islands
"acrosc;the Islandof Sebittik"'is to describe,"in Englishand lying further to the east, and in particular there is no
in Dutch, a line that crosses Sebatik from thewe:stcoast to mentionof Ligitanor Sipadan.
the east coastand goesno further".
As regards the map appended to the Explanatory
The Court notes that the Parties differ as t~ how the Memorandum, the Court notes that this shows four
preposition "across" (in the English) or "ove~"(in the differently coloured lines, the boundary eventually agreed
Dutch) in the first sentence of Article IV of the 1891 being represented by a red line. On the map, the red line
Conveiltion should be interpreted. It acknowledgesthat the continues out to the sea along parallel 4'10' N to the south
word is not devoid of ambiguity and is capable of bearing of Mabul Island, such an extension out to sea having not
either of the meanings given to it by the Parties. A line
establishedby treaty may indeedpass "across" anisland and been cotninented in the Memorandum,nor discussed ia the
Dutch Parliament.It also notes that this map shows only a
terminateon the shoresof such islandor continuebeyondit. number of islands situated to the north of parallel 4'10';
Thr:Parties also disagreeon the interpretationof the part apart from a few reefs, no island is shown to the south of
of the same sentence which reads "the boundary-line shall that line. It furthernotes that there is nothing in the case file
be continued eastward along that parallel [4'10fnorth]". In either to suggest that Ligitan and Sipadan, or other islands
the Court's view, the phrase"'shallbe continued" is also not such as Mabul, were territories disputed between Great
devoid of ambiguity.Article I of the Conventiondefinesthe
Britainand theNetherlandsat the time when theConvention
startingpoint of the boundary between the twoStates,whilst was concluded. The Court cannot therefore accept the
Articles I1 and I11describe how that boundaly continues argument of Indonesia that the red line on the map was
from one part to the next. Therefore, when Article IV extended in order to settle any dispute in the waters beyond
provides that "the boundary-line shall be continued" again Sebatik, with the consequence that Ligitan and Sipadan
from the east coast of Borneo along the 4'10'N parallel and were attributedto theNetherlands.
across the island of Sebatik, this does not, contrary to
Indonesia's contention, necessarily mean that the line Nor does the Court accept Indonesia's argument
regarding the legal value of the map appended to the
contini.iesas an allocationlinebeyond Sebatik. Explanatory Memorandum. The Court observes that the
The Court moreover considers that the difference in Explanatory Menlorandun1and map were never transmitted
punctu.ationin the two versions of Article IV of the 1891 by the Dutch Governinent to the British Government, but
Convention does not as such.help elucidate the meaning of were simply forwarded to the latter by its diplomatic agent
the tex.twith respectto a possibleextensionof the line out to
in The Hague. The British Governinent did notreact to this
sea,to the east of SebatikIsland. internal transmission.The Court then notes that such a lack
The Court observes that any ambiguity could.have been of reaction to the line on the map appended to the
avoided had the Conventio~lexpressly stipulated that the Memorandumcannot be deemed to constitute acquiescence
4'10' N parallel constituted, beyond the east coast of in this line. The Court concludesfrom the foregoingthat the
Sebatik, the line separating the islands untfer British map cannot be considered either an "agreement relating to
sovereignty from those under Dutch sovereignty. In these [a] treaty which was inade between all the parties in
connection with the conclusion of the treaty", within the
circunlstances, the silence in the text cannot be ignored. It
suppo:rtsthe position of Mahysia. meaning of Article 31, paragraph 2 (a), of the Vienna
Convention, or an "instrument which was made by [a]
Thecontext part[y] in connectioilwith the coilclusion of the treaty and
(paras. 44-48) acceptedby the otherparties as an instrumentrelated to that
treaty", within theeaningoFArticle31,paragraph2 (b), of
Having summarized the Parties' arguments concerning the Vienna Convention.
the contextof the 1891Convention,the Court considersthat
the Dutch Explanatory Memorandum appended to the draft
Theobject aildpzirpose of the 1891 Cortverztiort
Law submitted to the Netherlands States-General with a (paras. 49-5 1)
view 'toratification of the Convention, the only document
relating to the Conventionto have been publisheifduringthe Having examined the arguments of Indonesia and
period when the latter wits concluded, provides useful Malaysia, the Court considersthat the objectand purpose of
informationon a certainnumberof points. the 1891 Convention was the delimitation of boundaries
betweenthe parties' possessionswithinthe island of Borneoitself, as shown by the preamble to the Convention, which During the negotiations,the parties used varioussketch-
provides that the parties were "desirous of defining the maps to illustrate their proposals and opinions. The Court

boundaries between the Netherlands possessions in the considersthat it is impossibleto deduce anythingat all from
Island of Borneo and the States in that island which are the lengthof the lineson these sketch-maps.
under British protection" (emphasis added by the Court). 'The Court concludes that neither the ti-avaux
This interpretation is, in the Court's view, supportedbythe priparatoires of the Conventionnor the circumstancesof its
very scheme of the 1891 Convention. The Court does not conclusion can be regarded as supporting the position of
find anything in the Convention to suggest that the parties
intended to delimit the boundary betweentheir possessions Indonesia when it contends that the parties to the
Convention agreed not only on the course of the land
to the .east of the islands of Borneo and Sebatik or to boundary but also on an allocation line beyond the east
attributesovereigntyoverany otherislands. coast of Sebatik.
The Court accordingly concludes that the textof Article
IV ofthe 1891Convention,when read in context and inthe
light of the Convention's object and purpose, cannot be Subsequent practice
(paras. 59-80)
interpreted as establishing an allocation line determining The Court observes that the relations between the
sovereignty over the islands out to sea, to the east of the
islandof Sebatik. Netherlands and the Sultanate of Bulungan were governed
by a series of contracts entered into between them. The
Contractsof 12November 1850and2 June 1878laid down
Strpplelnentary means to seek possible the limits of the Sultanate. These limits extended to the
conJir~nationof Court 'sinterpretation: north of the land boundary that was finally agreed in 1891
"travauxpriparatoires "of the 189 1 between the Netherlands and Great Britain. For this reason
Cor~ventio~a tnd circrrmstnncesof its
conclusion the Netherlands had consulted the Sultan before concluding
(paras. 53-58) the Convention with Great Britain and was moreover
obliged in 1893to amend the 1878Contract in orderto take
In view of the foregoing, the Court considers that it is into account the delimitation of 1891. The new text
not necessary to resort to supplementary means of stipulatedthat the islands of Tarakan and Nanukan, and that
interpretation,such as the travuzrxpr~paratoiresof the 1891 portion of the island of Sebatik situated to the south of the

Convention and the circumstances of its conclusion, to boundary line, belonged to Bulungan, together with "the
determine the meaning of that Convention; however, as in small islands belonging to the above islands, so far as they
other cases, it considers that it can have recourse to such are situated to the south of the boundary-line". The Court
supplementary means in order to seek a possible observes that these three islands are surrounded by many
confirmation of its interpretation of the text of the smaller islands that could be said to "belong" to them
Convention. geographically. The Court, however, considers that this
cannot apply to Ligitan and Sipadan, which are situated
The Court observes that following its formation, in May
1882,the British North Borneo Company (BNBC)asserted more than 40 nautical miles away from the three islands in
rights which it believed it had acquired from Alfred Dent question.
and Baron von Overbeck - who themselves acquired them The Court then recalls that the 1891 Convention
from the Sultan of Sulu - to territories situated on the included a clause providing that the parties would in the
north-eastern coast of the island of Borneo (in the State of futurebe able to definethe course of the boundary linemore

Tidoeng "as far south as the Sibuco River"); confrontations exactly. Thus, Article V of the Convention states: "The
then occurred between the Company and the Netherlands, exactpositions of the boundary-line,as describedin the four
the latter asserting its rights to the Sultan of Bulungan's preceding Articles, shall be detennined hereafter by mutual
possessions, "with inclusion of the Tidoeng territories" agreement, at such times as the Netherlands and the British
(emphasis in the original). These were the circumstancesin Govcxnmentsmay thinkfit."
which Great Britain and the Netherlands set up a Joint
The first such agreement was the one signed at London
Commission in 1889 to discuss the bases for an agreement by Great Britain and the Netherlands on 28 September 1915
to settle the dispute. relating to "the boundarybetween the State of North Borneo
The Joint Commissionmet threetimes and devoted itself and the Netherlands possessions in Borneo". By that
almost exclusively to questions relating to the disputed area Agreement, the two States approved and confirmed a joint
of the north-east coastof the islandof Borneo.It was only at report, incorporated into that Agreement. and the map

the last meeting, held on 27 July 1889, that the British annexed thereto, which had been drawn up by a mixed
delegation proposed that the boundary should pass between Commission. The Commissioners started their work on the
the islands of Sebatik and East Nanukan. The Netherlands east coast of Sebatik and, from east to west, undertook to
had rejected the British proposal. The specific idea of "delimitate on the spot the frontier" agreed in 1891, as
Sebatik Island being divided along the 4"10'N parallel was indicated in the preamble to the Agreement. In the Court's
only introduced later. In a letter of 2 February 1891 the
view., the Commissioners' assignment was not simply a
Netherlandsagreedwiththis partition. demarcationexercise,the task of the parties being to clarify
the course of a line which could only be imprecise in viewof the somewhat general wording of the 1891 Convention Britain and the Netherlands as to the prolongation of the
and the line's considerable length. The Courtfinds that the boundary line,as an allocation line,out to sea to the east of
intention of the parties to clarif4rthe 1891 delimitationand SebatikIsland.
the complementary nature of the demarcation operations It notes that inthe course of the proceedings,the Parties
become very clear when the text of the Agreement is
examined carefully. Thus the Agreement indicates that made particular reference to two maps: the mapannexed to
the ExplanatoryMemorandumappendedby the Netherlands
"[wlhere physical features did not present natural Government to the draft Law submitted to the States-
bound.aries conformable with the provisio~is of the Generalfor the ratification of the 1891Convention,'and the
Boundary Treaty of the 20th June, 1891, [the map annexedto the 1915Agreement.The Courthas already
Comn~issioners]erected the:following pillars". Moreover, set out its findings as to the legal value of these maps (see
the Court observes that the course of the boundary line paras.47,48 and 72 above).
finally adopted in the 1915 Agreement does not totally
Having examined the other maps produced by the
correspondtothat of the 1891Convention. Parties, the Court finds that,in sum, with the exceptionof
In view of the foregoing, the Court does not accept the map annexed to the 1915 Agreement (see above), the
Indonesia's argumentthat the1915Agreementwas purely a cartographic material submitted by the Parties is
demarcation agreement; nor can it accept the conclusion inconclusivein respect of the interpretationof ArticleIV of
drawn therefrom by Indonesia that the very nature of this the 1891Convention.
Agreement shows that the parties were not required to

concernthemselvesthereinwith the course of the lineout to
seato the eastof SebatikIsland. The Court ultimately comes to the conclusion that
After examining the title and preamble of the 1915 Article IV, interpreted in its contextand in the light of the
Agreement and the terms; of the joint report of the
Commission, the Court concludesthat the 1915Agreement object and purpose of the Convention, determines the
covered a priori the entire boundary "b~:tween the boundary between the two Parties up to the eastern
extremity of Sebatik Island and does not establish any
Netherlandsterritoryand the State of BritishNorth Borneo" allocation line further eastwards. That conclusion is
and that the Commissionersperformed their task beginning confirmed both by the travaux prbparatoires and by the
at the easternend of Sebatik.In the opinion ofthe Court, if subsequentconductof the partiesto the 1891Convention.
the boundary had continued in any way to the east of
Sebatik, at the very least some mention of that could have
been expected in the Agreement. The Court, in addition, Title by succession
considers that an examination of the map annexed to the (paras. 93-125)

1915 Agreement reinforces its interpretation of that The Court then turns to the questionwhether Indonesia
Agreement. or Malaysia obtained title to Ligitan and Sipadan by
The Court is furtherof the viewthat a debate,referredto succession. The Court recalls that Indonesia contended
by Indonesia, that took place within the DutchlSovernment during the secondround of the oral proceedings that, if the
between 1922 and 1926 over whether the issue of the Court were to dismiss its claimto the islands in dispute on
the basis of the 1891 Convention, it would nevertheless
delim.itationof the territorial watersoff the east coastof the
island of Sebatik should be raised with the British have title as successor to the Netherlands, which in turn
Government, suggests that,in the 1920s,the best informed acquired its title through contracts with the Sultan of
Dutch authorities did not consider that there had been Bulungan, the original title-holder. Malaysia contendsthat
agreement in 1891 onthe extension out to sea of the line Ligitan and Sipadan never belonged to the possessions of
draw:non landalongthe4"10'northparallel. the Sultanof Bulungan.
The Court observes that it has already dealt with the
The Court finally is of the opinion that it cannot draw
any conclusionforpurposesof interpretingArticle IV of the various contracts of vassalage concluded between the
1891 Convention from tlne practice of the Parties in Netherlandsand the Sultan of Bulungan whenit considered
awardingoilconcessions. the 1891Convention.It recalls that in the 1878Contractthe
In view of all the foregoing,the Court considersthat an island possessions of the Sultan were described as
examination of the subsequentpractice of the parties to the "Terekkan [Tarakan], Nanoekan panukan] and Sebittikh
[Sebatik],with the islets belongingthereto". As amendedin
1891 Convention confirms the conclusions at which the 1893, this list refers to the three islands and surrounding
Court has arrived in paragraph 52 above as to the
interpretationof Article1V,ofthatConvention. islets in similar termswhile taking into accountthe division
of Sebatikon the basis of the 1891Convention. The Court
Maps further recalls that it stated above that the words "the islets
belongingthereto"can onlybe interpretedasreferringto the
(paras. 81-91) small islands lying in the immediate vicinity of the three
The Court observes that no map reflecting the agreed islands which are mentioned by name, and not to islands
views of the parties was appended to the 1891 Convention, which are located at a distance of more than 40 nautical

which would have officia:llyexpressed the will of Great miles. The Court therefore cannot accept Indonesia'scontentionthat it inherited title to the disputed islandsfrom Spain, thus losing any title he may have hadover islands
the Netherlands through these contracts,which stated that
located beyond the 3-marine-leaguelimit from the coast of
the Sultanate of Bulungan as described in the contracts North Borneo. The Court, therefore, is of the opinion that
formedpart oftheNetherlands Indies. Spain was the only State which could have laid claim to
The Court then recalls that for its part, Malaysia Lig:itanand Sipadan by virtue of the relevant instruments
maintains that it acquired sovereignty over the islandsof but thatthere is no evidencethat it actually did so.It further
Ligitan andSipadanfurtherto a seriesof allegedtransfersof obs1:rvesthat at the time neither Great Britain,on behalf of
the State ofNorth Borneo, nor the Netherlands explicitly or
the title originally heldby the former sovereign, the Sultan implicitlylaidclaimto Ligitan andSipadan.
of Sulu, that title having allegedly passed in turn to Spain,
the United States, Great Britain onbehalf of the State of 'Thenext link in the chain of transfers of title is the
North Borneo, the United Kingdom of Great Britain and Treaty of 7 November 1900 betweenthe United States and
Northern Irelandand finally to Malaysia. It is this "chain of Spain, by which Spain "relinquish[ed] to the United States
title" which, according to Malaysia, provides it with a all title and claimof tit...to any and all islandsbelonging
treaty-basedtitleto Ligitanand Sipadan. to the PhilippineArchipelago"which had not been covered

The Court notes at the outset that the islands in dispute by 1:heTreaty of Peace of 10 December 1898.The Court
are not mentionedby name in any of the internationallegal first notes that, although it is undisputedthat Ligitan and
instruments presented by Malaysia to prove the alleged Sipstdanwere not within the scope of the 1898 Treaty of
consecutive transfers of title. It further notes that the two Peace, the 1900Treaty does not specify islands, apartfrom
islands were not included in the grant by which the Sultan Cagayan Suluand Sibutuand their dependencies,that Spain
of Sulu ceded all his rightsand powersover his possessions ceded to the United States. Spain nevertheless relinquished
by that Treaty any claim it may have had to Ligitan and
in Borneo, including the islands within alimit of 3 marine Sipadan or other islands beyond the 3-marine-league limit
leagues, to Alfred Dent and Baron vonOverbeck on 22
January 1878, a fact not contested by the Parties. Finally, from the coast of North Borneo. Subsequent events show
the Court observes that,whilethe Partiesboth maintainthat that the United Statesitselfwasuncertainto which islands it
the islands of Ligitan and Sipadan were not terraettzrllius had acquired title under the 1900 Treaty. A temporary
during the period in questionin the present case, theydo so arrangement between Great Britain and theUnited States
on the basis of diametrically opposed reasoning, each of was made in1907by anExchangeof Notes.

them claimingtoholdtitle to those islands. This Exchange of Notes, which did not involve a
The Court first deals with the question whether Ligitan transfer of territorial sovereignty, provided for a
and Sipadan were part of the possessions of the Sultan of continuation of the administration by the BNBC of the
Sulu. In all relevant documents, the Sultanate is invariably islands situatedmore than 3 marine leagues from the coast
describedas "the Archipelagoof Sulu and the dependencies of North Borneo but left unresolved the issue to which of
thereof' or"the Island of Sooloowith all its dependencies". the partiesthese islandsbelonged.

These documents, however, provide no answer to the This temporary arrangementlasted until2 January 1930,
question whether Ligitanand Sipadan,which are locatedat when a Convention was concluded between Great Britain
a considerable distance from themain island of Sulu, were and the United Statesin which a line was drawn separating
part of the Sultanate's dependencies. The Court further the islands belongingto the Philippine Archipelago on the
refers to Malaysia's allegation of the existence of ties of one hand and the islands belonging to the State ofNorth
allegiance between the Sultan of Suluand the Bajau Laut Borneo on the other hand. Article 111of that Convention
who inhabitedthe islands off the coastof North Borneoand statedthat all islandsto the southand westof the lineshould

who from time to time may have made use of the two belong to the State of North Borneo. From a point well to
uninhabited islands. The Court is of the opinion that such the north-eastof Ligitan and Sipadan, the line extended to
ties may well have existed but that they are in themselves the north and to the east. The Convention did notmention
not sufficient to provide evidence that the Sultan of Sulu any island by name apart from the Turtle and Mangsee
claimed territorial title to these two small islands or Islands, which were declared to be under United States
considered them part of his possessions. Nor is there any sovereignty. By concluding the 1930 Convention, the
evidence that the Sultan actually exercised authority over United States relinquished any claim itmight have hadto

Ligitanand Sipadan. Ligitanand Sipadanandto the neighbouringislands.Butthe
Turning to the alleged transfer of title over Ligitanand Court cannot conclude either from the 1907 Exchange of
Sipadan to Spain, the Court notes that in the Protocol Notes or from the 1930Convention or from any document
betweenSpain and Sulu Confirmingthe Basesof Peace and emanating from the United States Administration in the
Capitulationof 22 July 1878the Sultanof Sulu definitively inteivening period that the United States did claim
ceded the "Archipelago of Sulu and the dependencies sovereigntyover these islands. Itcan, therefore,not be said
with any degree of certainty that by the 1930 Convention
thereof' to Spain. But the Court concludes that there isno
evidence that Spain considered Ligitan and Sipadan as the [Jnited States transferred title to Ligitanand Sipadanto
coveredby that Protocol. The Court observes,however, that Great Britain, as Malaysia asserts. On the other hand, the
it cannot be disputed, that the Sultan ofSdu relinquished Court cannot let go unnoticedthat GreatBritain was of the
the sovereign rights over all his possessions in favour of opinion that as a result of the 1930Convention it acquired,on behalfof the BNBC,title to all the islands beyond the 3- archipelagicbaselinesare defined,Indonesiarecognizesthat
marine-league zone which had been administered by the it did not at that time include Ligitan or Sipadan as base
Company,with the exceptionof the Turtle and the Mangsee points for the purpose of drawing baselines and defining its
Islancls.To none of the islands lying beyond the 3-marine- archipelagic waters and territorial sea, although it argues
league zone had it ever before laid a formal claim. Whether that this cannot be interpreted as demonstrating that

such title in the case of Ligitan and Sipadan and the Indoi~esiaregarded the islands as not belonging to its
neighbouring islands was indeed acquired as a 1:esultof the territory.
1930 Convention is less relevant than the fact that Great As regards its effectivit6son the islands of Ligitan and
Britain's positionon the effect of this Convention was not Sipadan, Malaysia mentions control over the taking of
contestedby anyother State. turtles and the collection of turtle eggs, allegedly the most

The State of North Borneo was transformed into a important economic activity on Sipadan for many years.
colony in 1946. Subsequent:ly,by virtue of Article IV of the Malaysia also relies on the establishment in 1933 of a bird
Agreement of 9 July 1963, the Government of'the United sanctuary on Sipadan. Malaysia further points out that the
Kingdom agreed to take "such steps as [might] be British North Borneo colonial authorities constructed
appropriateand availableto them to securethe enactmentby lighthouses on Ligitan and Sipadan Islands in the early
the Parliament of the United Kingdom of an Act providing 1960sand thatthese exist to this day and are maintainedby
for the relinquishment ...of Her Britaimic Majesty's the Malaysianauthorities.

sovereignty and jurisdiction in respect of North Borneo, The Court first recalls the statement by the Permanent
Saravfakand Singapore"in favourof Malaysia. Court of InternationalJustice in theLegd StatusofEastern
In 1969Indonesia challtmgedMalaysia's title to Ligitan Gree?rland(Denmnr-k v.Nor-~~ny c)ase:
and Sipadan and claimedto have title to the two islands on "a claim to sovereignty based not uponsome particular
the basis of the 1891Conveintion.
act or title such asa treaty of cession but merely upon
1x1view of the foregoing, the Court concludes that it continued display of authority, involves two elements
cannot accept Malaysia's contention that there is an each of which must be shown to exist: the intention and
uninterrupted series of transfers of title fi.011the alleged will to act as sovereign, and some actual exercise or
original title-holder, the Sultan of Sulu, to Malaysia as the displayof suchauthority.
present one. It has not been established with certainty that Another circumstance which must be taken into
Ligitiin and Sipadan belonged to the possesz~ionsof the
account by any tribunal which has to adjudicate upon a
Sultan of Sulu nor that any of the alleged subsequent title- claim to sovereignty over a particular territory, is the
ho1de:rshad a treaty-based title to these two islands. The extent to which the sovereigntyis also claimed by some
Court can therefore not find that Malaysia ha:; inherited a otherPower."
treaty-based title from its predecessor, the UnitedKingdom The PermanentCourtcontinued:
of Great Britainand NortheirnIreland.
"It is impossibleto read the records of the decisions
in cases as to territorial sovereignty without observing
that in many cases the tribunal has been satisfied with
very little in the way of the actual exercise of sovereign
rights,provided thatthe other State couldnot make out a
The Court then considerswhether evidence furnishedby superior claim. This is particularly true in the case of
the Parties with respect to"efectivitks"relied uponby them
provides the basis for a clecision - as requested in the claims to sovereignty over areas in thinly populated or
SpecialAgreement - on the questionto whom.sovereignly unsettled countries." (P.C.I.J., Series A/B, No. 53, pp.
overLigitan and Sipadanbelongs. 45-46)
The Court observes that both Parties claim that the The Courtpoints out thatin particularin the case of very
small islands which are uninhabited or not permanently
effecfivitkson which theyrely merely confirma treaty-based inhabited- like Ligitan and Sipadan, which have been of
title. On an alternative basis, Malaysia claims that it
acquiredtitle to LigitananclSipadanby virtue of continuous little economic importance (at least until recently) -
peaceful possession and administration, without objection effectivitkswill indeedgenerallybe scarce.
from Indonesiaor its predecessorsin title. The Court further observes that it cannot take into
The Court indicatesthat,having foundthat neither of the consideration acts having taken place after the date on
which the dispute between the Parties crystallized unless
Parties has a treaty-basedtitle to LigitanandSipadan,it will
consider these effectivitks as an independent and separate such acts are a nonnal continuationof prior acts and are not
issue:. undertaken for the purpose of improving the legal position
It notes that, in support of its argument; relating to of the Party which relies on them. The Court therefore,
ejfectivitks,Indonesia cites patrols in the area by vessels of primarily, ailalyses the efectivitis which date from the
period before 1969, the year in which the Parties asserted
the Dutch Royal Navy,activitiesof the IndonesianNavy, as conflictingclaimsto Ligitanand Sipadan.
well as activities of Indonesian fishermen. It notes further
that, in regard to its Act No. 4 concerning Indonesian The Court finally observes that it can only consider
Waters, promulgated on 1.8February 1960, in which its those acts as constituting a relevant display of authoritywhich leave no doubt as to their specific reference to the Maritime Delimitation aiid Territorial Qziestioits between
islands in dispute as such.Regulationsor administrativeacts QatarandBahraiiz(Qatarv.Bahrain)it statedas follows:

of a generalnature can thereforebe taken as effectivitdswith "Certain types of activities invoked by Bahrain such
regard to Ligitan and Sipadan only if it is clear from their as the drilling of artesian wells would, taken by
terms or their effects that they pertained to these two themselves, be considered controversial as acts
islands. performed 2 titre de soiiveraii~.The construction of
Turning then to the effectivitdsrelied on by Indonesia, navigational aids, on the other hand, can be legally
the Court begins by pointing out that none of them is of a relevant in the case of very small islands. In the present

legislativeor regulatory character. It finds, moreover, thatit case, taking into account the size of Qit'atJaradah, the
cannot ignore the fact that Indonesian Act No. 4 of 8 activities carried out by Bahrain on that island must be
February 1960, which draws Indonesia's archipelagic considered sufficient to support Bahrain's claimthat it
baselines, and its accompanying map do not mention or has sovereignty over it." (Judgiilent, Merits, I.C.J.
indicate Ligitan and Sipadan as relevant base points or Reports 2001,para. 197)
turningpoints.
The Court is of the view that the same considerations
With regard to a continuous presence of the Dutch and applyin thepresent case.
Indonesiannavies in the waters around Ligitan and Sipadan, The Court notes that the activities relied upon by
as cited by Indonesia, it cannot, in the opinion of the Court, Malaysia, both in its own name and as successor State of
be deducedeither fromthe reportof the commandingofficer GreatBritain, are modest innuinber but that theyare diverse
of the Dutch destroyer Lynx - which patrolled the area in in character and include legislative, administrative and
1921 - or from any other documentpresentedby Indonesia
quasi-judicialacts. They covera considerableperiod of time
in connection with Dutch or Indonesian naval surveillance and show a pattern revealing an intention to exercise State
and patrol activities that the naval authorities concerned functions in respect of the two islands in the context of the
considered Ligitan and Sipadan and the surrounding waters administrationof a widerrange of islands.
to be under the sovereigntyof theNetherlandsor Indonesia. The Court moreover cannot disregard the fact that at the
The Court finally observes that activities by private
persons such as Indonesian fishermen, cannot be seen as time when these activities were carried out, neither
Indonesia nor its predecessor, the Netherlands, ever
effectivitdsif they do not take place on the basis of official expressed its disagreement or protest. In this regard, the
regulations or under governmental authority. The Court COUI- ntotes that in 1962and 1963the Indonesianauthorities
concludesthat the activitiesrelied upon by Indonesiado not did not even remind the authorities of the colony of North
constitute acts a titre de souverairtreflecting the intention Borneo, or Malaysia after its independence, that the
and willto act in thatcapacity. construction of the lighthouses at those times had taken
With regard to the efectivitks relied upon by Malaysia, place on teiritory which theyconsideredIndonesian;even if

the Court first observes that pursuant to the 1930 they regarded these lighthouses as merely destined for safe
Convention, the United States relinquished any claim it navigation in an area which wasof particular importancefor
might have had to Ligitan and Sipadan and that no other navigation inthe waters offNorth Borueo, suchbehaviour is
State asserted its sovereigntyover those islands at that time unusual. Given the circumstances of the case, and in
or objected to their continued administrationby the State of particular in view of the evidence furnished by the Parties,
North Borneo. The Court further observes that those the Court concludes that Malaysia has title to Ligitan and

activities which took place before the conclusion of that Sipadanon the basis of the effectivitis referredto above.
Conventioncannot be seen as acts "a titre de sou~~erairt"as,
Great Britain did not at that time claim sovereignty on Declaration of Judge Oda
behalf of the State of North Borneo over the islands beyond
the 3-marine-league limit. Since it, however, took the Judge Oda considers the present case a "weak" one in
position that the BNBC was entitled to administer the that neither Party made a strong showing in support of its
islands, a position which aRer 1907 was formally claini to title to the islands on any basis. Judge Oda notes
that the Court was requested to choose between the two
recognized by the United States, these administrative Parties in adjudging sovereignty, and he considers that
activitiescannotbe ignoredeither.
Both the measures taken to regulate and control the giver1that choice,the Courtreacheda reasonabledecision.
collecting of turtle eggs and the establishment of a bird In Judge Oda's view, a full understandingof the present
reserve, as cited by Malaysia as evidence of such effective case requires an awareness of the underlying facts and
administration over the islands, must, in the view of the circumstances. He notes that the existence of the islands of
Ligitan and Sipadan has been known since the nineteenth
Court,be seen as regulatory and administrativeassertions of century, but that neither Indonesia nor Malaysia claimed
authorityoverterritorywhich isspecifiedby name.
The Court observes that the construction and operation sovereignty over them until the late 1960s. Prior to that
of lighthouses and navigational aids are not normally time, there was no dispute between the two States
considered manifestations of State authority. It recalls, conct:rning sovereignty over the islands. Any dispute that
may have arisen at that time concernedonly the delimitation
however, that in its Judgment in the case concerning of the contineiital shelf between the two States, which hadbecome of interest because of submarineoil re:serves,but have a direct bearing on the delimitation of the continental
rtotsovereigntyovertheislands. shelf.
In the mid-1960s agreements between neighbouring

States to delimit the continental shelf wereentered into in Dissenting opiiziorlofJudge Frunck
all parts of the world. Indonesiaand Malaysia succeededin Judge Franck agrees with the Court's finding and
concluding an agreement on the delimitation of the
continentalshelfin the MalaccaStraitsand the SouthChina reasoning in rejecting Malaysia's contentionthat it has
Sea.However,negotiationson the area to the east of Borneo inheritedsovereigntyoverPulau Ligitan and Pulau Sipadan
became deadlocked in September 1969 and the Parties by virtue of a "chain of title" that stretchesfrom the Sultan
agreed to suspend them. The Parties considered this date to of Suluto Spainto theUnitedStatesto Britainto Malaysia.
As for the dfectivitb, acts undertakenby the Parties in
be ther"critical date" in respect of their dispute concerning
sovereignty. Prior to these negotiations, Indonesia and their sovereigncapacitywithregardto the twoislands,these
Malaysia had also granted Japanese oil companies oil are so inconsequential that, weighing them against each
exploration and exploitation concessions in this area. The other resembles trying to guess the respective weight of a
concession zones didnot overlap and neither Indonesianor handful of cut grassand a handful of feathers.Malaysia set
Malaysia claimed that its zone had been violated by the up navigational lights which,in other eases, this Court has
other Party. considered not to be acts demonstrating a claim to
sovereignty. The establishmentby Malaysia of a deep-sea
~ud~; Oda finds that, contrary to the asse:rtionin the
Special Agreement, the onIy dispute which existed in or diving resort occurred after the critical dateon which the
around 1969 was one concerning the delimitationof the Parties agreed to a "stand-still" that excludes evidence of
continental shelf and that such delimitation dispute would this sort of subsequent activity. The Dutch,by their efforts
have been referred more properly to the Co~lrtby joint by sea and air to contropiracy in the area demonstratedan
active interest of at least equal vigourto that of the British.
agreement. Judge Oda further notesthat the Applicationby The assessment of these and other such lightweight
the Philippines in 2001 for permission to intenene did not activitiescannotbut leadto inconclusiveresults.
concern either Party's title to the two islar~dsbut the
delimitationof the contineiltalshelfbetween the Parties. Moreover, the Court shouldnot evenhave embarkedon
In the 1960s, the prevailing rule concerning the this unsatisfyingtask because sucheffectivitksare ii~elevant
when title to territory hasbeen establishedby treaty. In this
delimitation of the continental shelfwas the one set out in instance, Judge Franck maintains, the Anglo-Dutch
Artic1.e6, paragraph 1, of' the 1958 Conventionon the Convention of 1891, in delimiting the entire frontier
Continental Shelf. This provision is extremely ambiguous
becauseit neither makes clear the baselinesfrom which the between the colonial predecessors on Borneo of Malaysia
median line should be measured nor does it explain the and Indonesia, has established a line intendedto resolve
"special circumstances" whichjustify departing from a potentially conflicting territorial claimsof the two empires.
median line in connection .withcertain islands. Judge Oda The object and purposewas to bring peace to avast area of
overlapping ambitions and, in accordance with the Vienna
suspects that the main concern of both Parties in their Convention on Treaties, that objective should have been
negotiations on the delinlitation of their respective honouredby this Court.
continental shelves relatedt:othe definitionof the baselines
and t;herole in terms of the:"special circumsta~lces"test to In particular, Article IV of the 1891 Convention, in
be played by the two islands. In fact, the Parties establishing the 4'10' line to allocate temtory beyond
(particularly Indonesia) might have conc:luded that Borneo's east coast and "across the Island of Sebittik"
sovereignty over the islandswould entitle then1to a much shouldhave been presumed to extend so faras necessaryto
allocate the two islands - which clearly liesouth of the
wider continental shelf. In Judge Oda's view, the issueof line- and thereby to resolve any future source of
sovereignty arose only as a result of lhe Parties'
manoeuvring for better bargaining positions in the disputation. It ought to have been presumed that a treaty
continental shelf delimitation. This resulted from a intendedto resolve all outstanding issuesin the area could
misconception on the part. of the Parties, wllo failed to not have intended to leave the disposition of Ligitan and
undelrstand that, in accordance with the "speeial Sipadanup to turtle egg collectionandpiracy patrolling.
circumstances" rule,a delimitationlinecouldhave alsobeen Indeedthere is ample evidenceto validatethis logical,if

drawn disregardingthese twoislands. rebuttable but unrebutted, presumption. The Dutch
Though Malaysia has now been awarded sovereignty Government's map accompanying the Explanatory
over the islands, the impaci:of the Court'sJudgmenton the Memorandum by which the ratification of the 1891
delimitation of the continental shelf should be considered Convention was urged upon the States-General shows the
from a differentangle. The rule concerningthe delimitation 4O10'line extending out to sea eastward of Sebatik. This
map was well known to the British Government,which had
of the continental shelf is set out in Article 83 of the 1982 been alerted to it by its Minister in The Hague. There was
Unitt:d Nations Convention on the Law of the:Sea calling
for "an equitable solution". The question r:inains how no objectionfromLondon.In more recent times, Indonesian
"equitable" coilsiderationsapply to theseis1and..udgeOda and Malaysianoil explorationconcessionswere also careful
conc.ludesthat the present Judgment does not necessarily to respect the extension of this line well east of Sebatik.These facts duly support the inference that the4'10' line establishing the legal regime that underpins world peace.
was not intendedtoend on the east coastof Sebatik. Such treaties should be interpretedbroadly,not narrowlyas
if the:)'were contracts for the saleof barley. In this light,the
Moreover, the legal presumption - recognized in this
Court's jurisprudence - that treaties establishing borders, 4'10' line in the 1891 Convention should have been
boundaries and lines of allocation between States are recoi~ized as dispositivein this dispute.
intended to effect closure has an important role to play in